Citation: R v Eliot (No. 1) [2022] NSWDC 327
Court: District Court of New South Wales
Date: 4 August 2022
Judge: Grant DCJ
Background
The accused, a 14-year-old, was admitted as a voluntary mental health patient at a regional NSW hospital after his mother discovered a journal in which he had written about wanting to cause a mass harm incident at his school. A mental health nurse read the journal and contacted police. Several officers attended the hospital, read the journal, and spoke at length with the accused's mother.
During that conversation, the mother disclosed that her son had recently been researching the Columbine High School shooting on his laptop at home. Police then obtained her written consent in a notebook entry to seize the laptop "to assist the investigation of Thomas Eliot's mental state." An officer attended the home, conducted a preliminary review of the internet search history, and seized the computer.
The accused was subsequently charged with conspiring to murder and, in the alternative, soliciting murder. At trial, the Crown sought to tender the laptop's internet search history as part of its case. Defence counsel applied to have the evidence excluded under s 138 of the Evidence Act 1995, on the basis that it was improperly obtained.
Legal Issues
- Whether the police conduct in obtaining the mother's consent to seize the laptop was "improper" within the meaning of s 138 of the Evidence Act 1995
- Whether, if the evidence was improperly obtained, the desirability of admitting the evidence outweighed the undesirability of admitting it, having regard to the factors in s 138(3)
Decision
Grant DCJ rejected the evidence of Senior Constable Blacker that he had not formed a view that a criminal offence had been committed until after he left work that day. The court found that experienced officers had read the journal before seeking consent, that the investigation was plainly criminal in nature at that point, and that the police consistently represented to the mother that the purpose was to assist with her son's mental health. Critically, none of the officers told her she was entitled to refuse consent, nor that her son was at risk of being charged.
The court held that this amounted to impropriety. Drawing on the standard articulated in Ridgeway v The Queen (1995), the conduct was "quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement." The mother's consent was not informed consent: she was misled about the true nature of the investigation and was unaware she had any right to refuse.
On the s 138(3) balancing exercise, the court weighed the public interest in admitting relevant evidence against the seriousness of the impropriety. The accused was a 14-year-old involuntary mental health inpatient. The court found the officers had been "grossly reckless" and had effectively circumvented the accused's rights against self-incrimination. The court also noted that police could have applied for a warrant, given they already held the journal and had information about the computer, but did not do so.
The court concluded, citing the well-known passage from Pearse v Pearse (1846) quoted in Bunning v Cross (1978), that expediency had dominated the rights of a vulnerable accused. The desirability of admitting the evidence did not outweigh the undesirability of admitting it, and discipline of police conduct was necessary to avoid the appearance of judicial condonation. The laptop evidence was excluded.
Orders Made
• The internet search history evidence is excluded under section 138 of the Evidence Act 1995
Key Takeaways
- The District Court confirmed that "impropriety" under s 138 of the Evidence Act 1995 does not require unlawful conduct; it is sufficient that police conduct falls below the minimum standards reasonably expected of law enforcement officers, following Ridgeway v The Queen.
- Where police obtain consent to seize property by misrepresenting the true purpose of their investigation and without advising the consenting party of the right to refuse, that consent is not properly informed and the resulting seizure is improperly obtained.
- The particular vulnerability of the accused, a 14-year-old mental health inpatient, weighed heavily in the s 138(3) balancing exercise, with the court finding that society expects law enforcement to protect rather than circumvent the rights of such individuals.
- Availability of an alternative lawful means of obtaining evidence, specifically a search warrant, was a relevant factor under s 138(3) that told against admission where police had sufficient information to seek one but did not.
- Under s 138, the onus rests first on the accused to establish impropriety, and only then does the burden shift to the Crown to persuade the court that the evidence should nonetheless be admitted, as confirmed in R v Coulstock (1998).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 138
Cases
- Bunning v Cross (1978) 141 CLR 54
- Pearse v Pearse (1846) 63 ER 950
- R v Coulstock (1998) 99 A Crim R 143
- Ridgeway v The Queen (1995) 184 CLR 19
- Robinson v Woolworths Limited (2005) 60 NSWLR 612